I. General agreements
§ 1 Scope
(1) For the business relationship between Cash & Cow GmbH (hereinafter “contractor” or Cash & Cow for short) and the clients (hereinafter referred to as “client”) are exclusively subject to the following general terms and conditions in their version valid at the time of the conclusion of the contract.
(2) Deviating general terms and conditions of the client are not recognized, unless the contractor expressly agrees to their validity in writing.
(3) The client assures that he acts as an entrepreneur and not as a consumer. In accordance with § 14 BGB, the entrepreneur is any natural or legal person or partnership with legal capacity who, in concluding the contract, acts in the course of his commercial or independent professional activity.
(4) Differing conditions may apply for individual services, which have priority over the general terms and conditions in the event of deviations. In the case of contradictions, the following order of precedence applies (the lower number precedes the higher one):
- Regulations of the individual contract
- Part II of the Terms and Conditions
- Part I of the Terms and Conditions
(5) The contractor may accept the terms and conditions due to changes in market conditions , legislation, case law, or in the introduction or modification of products and services. Changes apply with renewed use of the services affected by the changes as long as the client does not object in writing to the changed conditions within a period of four weeks after notification. The contractor will separately inform the client of any such change in the notification of a change.
§ 2 Conclusion of contract
(1) The contract is concluded in the following steps: The client receives a contract by e-mail, which he signs using Adobe Sign. The contract is concluded when the contractor has also signed and a confirmation has been sent to the client.
(2) Upon conclusion of the contract, the client accepts the terms and conditions of the contractor.
(3) The contract is concluded in German or english language. The contract will be sent to the client by e-mail and must also be signed and returned to the contractor by Adobe Sign. The text of the contract is saved while maintaining data protection. The client can print or save the contract text.
§3 Payment methods
(1) Payment is made via SEPA Direct Debit. Any return debit notes are to be borne by the client.
(2) The due date depends on the terms of payment agreed in the contract. The regular payment term is 7 days without deduction. The client is already in default by default of payment. In this case, he has to pay the contractor default interest for the year according to the legal provisions.
(3) The obligation of the client to pay default interest does not exclude the assertion of further damages by the contractor.
(4) Without prejudice to other rights, the contractor is entitled in the event of default by the client after notification in writing to refuse all services not yet provided until payment of all defaulted payment obligations, limit the scope of services and / or provide these and other services only against payment in advance,
(5) If the client is in arrears with two consecutive ongoing payments or an amount that meets the current remuneration for two months, the contractor may terminate the contract without notice for good cause.
(6) Offsetting against the contractor is only granted to the client if his counterclaims are legally established, undisputed or acknowledged by the contractor. A right of retention may only be exercised by the client to the extent that the counterclaim is based on the same contractual relationship.
§ 4 Services of the contractor / obligations of the client
(1) The contractor only owes the services agreed in the offer / contract accepted by the client. The services relate only to the booking of current business transactions of the company to be named by the client. The services ordered depend on the selected subscription.
(2) For extra services, a separate fee is due. The contractor informs the client in advance about the costs for special services. In the case of expressly desired work performance on public holidays, on weekends or outside the usual business hours of the contractor, a separate fee will be charged. In particular, the client does not provide any legal or tax advice. The client is responsible for compliance with legal regulations.
(3) The contractor is entitled to change the scope and content of the services provided that
a) the agreed quality of the service remains essentially unchanged and the change is reasonable for the client, or
b) legal, judicial or regulatory requirements require a change in performance, or
c) the service includes or requires use of third-party products or services that are no longer available to Cash & Cow, without this being due to circumstances for which the contractor is at least negligently responsible.
The contractor will notify the client in writing or in text form of changes to the scope or content of the service in the case of a) or c) at least one month before the planned change. In the case of b), the display can also be made on a shorter term basis, if the mandatory requirements so require. If a change to c) substantially changes the agreed quality of a service to the detriment of the client, the latter may terminate the service affected by the change within a period of two months from notification of the change.
(4) The client is obliged to cooperate and must provide the contractor with the required access and all necessary information and data in an easy-to-process form in order to be able to fulfill the agreed services.
Unless otherwise agreed in the individual contract, the client also has the following obligations:
a) The client shall designate a contact person for the contractor by stating an e-mail address and will ensure that the e-mails are checked continuously during his business hours. The client will notify Cash & Cow immediately of any changes with regard to the contact person and the provided e-mail address.
b) Insofar as the use of online applications requires access data (in particular passwords), the client must sufficiently protect them against unauthorized third-party access.
c) The client must notify defects in the services in a comprehensible and detailed form, stating all relevant information for the detection and analysis of defects in writing. The client must support the contractor as far as necessary in the removal of defects.
d) The client may not undertake anything that could promote the unauthorized use of services. The client will inform the contractor immediately if he is aware that unauthorized access to services is imminent or has occurred in his area.
(5) The contractor is authorized to commission subcontractors without the consent of the client.
(6) The contractor is in principle free to choose suitable means of fulfillment of the contract.
(7) Agreed periods shall be extended accordingly in the case of force majeure, failure of technical systems, or in case of illness of the contractor’s staff or in case of breach of the duties of co-operation of the client. The assertion of damages is excluded for this purpose.
(8) The client assures that all transmitted information is true and complete, in particular no information is withheld. The information must be submitted in good time so that the contractor is not affected in the fulfillment of his performance obligation. The contractor will inform the client of the transmission deadlines necessary for timely performance in text form.
(9) In the area of assistance in tax matters, the services of the contractor are limited to the booking of current business transactions.
(10) After conclusion of the contract, the contractor sends the client a data sheet. This is to be truthfully completed and returned by the client within five working days. In addition, the client must transmit the files in a DATEV export filetype from the previous year and the current financial year. From the information provided, the contractor creates a business evaluation, which is sent to the client for review within 14 days. In the event of errors, the client must object within this period, after which liability is excluded.
(11) The necessary lead time from beginning of the contract to the start of booking is 10-14 days. The due date for handing over the current month to the contractor is the 12th of the month, otherwise the business transactions can only be booked from the following month. The client can send receipts at any time, but the sending has to be done at least once a week.
(12) Receipts that are sent after the 3rd of the following month are no longer considered for the booking of the month. If the contractor notices that documents are missing, the client will be informed of missing information. However, the contractor is not obliged to check whether documents are missing. The client is responsible for organizing missing documents himself. If documents are missing, the contractor may post the amounts as non-deductible costs or continuous items. A deduction as operating costs may then not be possible.
(13) If the client does not cooperate and consequently no service can be provided, the client is nevertheless obliged to pay the remuneration. If the client’s bank does not allow a connection to the data center, this leads to additional effort. This effort is not included in the subscription price and leads to additional costs of EUR 60 per hour plus VAT. Billing is based on the hours accrued.
§ 5 Price changes during the term
(1) The contractor is entitled to examine and adjust the remuneration for services during the term of the individual contract.
The need to adjust the current remuneration may result, in particular, from changes in the scope of services provided if this leads to an increase in the cost of providing the service. In the event of a change, the contractor shall determine the additional amount to be paid in future at its own discretion and inform the client of the amount of the fee to be paid in future in written form. The receipt of the price change information is to be confirmed by the client via a link. If an increase exceeds ten percent of the previous compensation for the service, the client is entitled to a special right of termination of this service, which can exercise this within one month of receipt of the price increase declaration.
(2) If the client makes use of services provided by Cash & Cow that are not included in the scope of the services provided by him, Cash & Cow may claim these in accordance with the prices normally charged for such services. This is the case in particular for services that depend on the usage behavior of the client.
§ 6 Term, termination
(1) The contract runs for 12 months. The notice period is 3 months to the end of the contract period, otherwise the contract is extended by further 12 months.
(2) The right to extraordinary termination for cause remains unaffected. An important reason exists in particular if the client is in default with an agreed payment despite a reminder or refuses to cooperate.
(3) Termination requires the written form to be effective. For the time of termination, the access of the notice of termination shall prevail.
§ 7 Liability
(1) Claims of the client for damages are excluded. Excluded from this are claims for damages of the client from the injury of the life, the body, the health of the client from the breach of essential contractual obligations (cardinal obligations) as well as the liability for other damages resulting from an intentional or grossly negligent breach of duty by the contractor, his legal representatives or vicarious agents are based. Significant contractual obligations are those whose fulfillment is necessary to achieve the objective of the contract.
(2) In the case of a breach of essential contractual obligations, the contractor shall only be liable for the contractually typical, foreseeable damage, if this was simply caused by negligence, unless it is a claim for damages of the client from a violation of life, body or health.
(3) The contractor is not liable for the lost profit. The contractor does not check the content transmitted by the client for accuracy and is not liable for any damage resulting therefrom. The contractor is also not liable if data exports are incorrectly imported by third parties (e.g. tax consultants) and remain unchecked.
(4) The restrictions according to paragraphs 1 to 3 shall also apply in favor of the legal representatives and vicarious agents of the contractor, if claims are asserted directly against them.
§ 8 Rights of third parties/ publication of documents
(1) If the client provides the contractor with contents or materials for the performance of the services, the client shall ensure that he has all necessary corresponding rights to them. Insofar as the contractor is claimed by third parties for infringement of property rights, the client exempts the contractor from claims of third parties.
(2) The contractor shall be obliged to surrender all the documents provided to the client after termination of the contract at the request of the client. The contractor will keep copies of the documents for a period of 10 years.
(3) If documents are sent to the client by mail, the client bears the risk of sending.
§ 9 Secrecy
(1) “Confidential Information” means all information, files and documents relating to business transactions of the other party concerned that have become known to the other party.
(2) Both parties undertake to keep confidential information about the other party in question and to use it only for the purpose of implementing this contract and for the purpose it pursues.
(3) Both parties undertake to protect the confidentiality of all employees and / or third parties who have access to the aforementioned business transactions.
(4) The obligation of secrecy according to paragraph 2 does not apply to information
a)already knownto the other party when the contract was concluded,
b) that werealready publishedat the time of submission by the client, without this resulting from a breach of confidentiality by the other party,
c) which the other party has expressly released in writingfor disclosure,
d) which the other party has obtained lawfully and without confidentiality from other sources, provided that the disclosure and use of such confidential information does notinfringecontractual or regulatory or administrative requirements;
e) which the other party itself has developed without access to theclient’sConfidential Information,
f) whichmust be disclosed onthe basis of legal information, disclosure and / or disclosure requirements or regulatory requirements.
§ 10 Data protection
(1) The client agrees to the storage of personal data in the context of the business relationship with the contractor, in compliance with the data protection laws, in particular the BDSG (german data protection law) and the GDPR. A transfer of data to third parties does not take place, as far as this is not necessary for the execution of the contract or the consent of the client. All contractual agreements are signed by e-signature. The client agrees to the use of the e-signature and data processing by the third party.
(2) Insofar as the client submits the data from third parties, the latter assures that he has obtained the consent of the third party and releases the contractor from any claims in this regard.
(3) The rights of the client’s or the data from the data subjects arise here in detail in particular the following standards of GDPR:
- Article 7 (3) – Right to revoke a data protection consent
- Article 15 – Right to information of the data subject, right to confirm and provide a copy of the personal data
- Article 16 – Right to rectification
- Article 17 – Right to cancellation (“Right to be forgotten”)
- Article 18 – Right to restriction of processing
- Article 20 – Right to data portability
- Article 21 – Right to object
- Article 22 – Right notto be subject to a decision based solely on automated processing, including profiling
- Article 77 – Right to complain to a supervisory authority
(4) To exercise the rights, the client or the person concerned is requested by e-mail to the contractor or to lodge a complaint with the competent supervisory authority.
(5) The contractor undertakes to take appropriate technical and organizational measures to ensure the security of personal data and to reduce the risk to the persons concerned.
§ 11 Reference
The contractor is entitled to use the client as a reference on his website and in social networks free of charge, unless expressly agreed otherwise.
§ 12 Final provisions
(1) The law of the Federal Republic of Germany shall apply to contracts between the contractor and the client under exclusion of the United Nations Convention on Contracts for the International Sale of Goods. The statutory provisions restricting the choice of law and the applicability of mandatory provisions, in particular of the state in which the client as a consumer is habitually resident, remain unaffected.
(2) Jurisdiction and place of fulfillment for all disputes arising from contractual relationships between the parties is the site of the contractor.
(3) The contract remains binding even in the case of legal invalidity of individual points in its remaining parts. Instead of the ineffective points, if available, the legal regulations apply. To the extent that this would constitute an unreasonable hardship for one of the contracting parties, however, the contract will become invalid as a whole.
II. Conditions for using applications
§ 1 Scope
(1) The following conditions apply to the provision of software programs, applications, apps, databases and the respective accompanying material (hereinafter collectively “applications”) for installation and operation at the client in addition to the conditions described in Part I of these Terms and Conditions.
(2) These terms also apply to third-party components included in the applications of licensors of the contractor. Such additional licensing terms may result from the accompanying documents.
§ 2 Services
(1) The scope of applications is determined by the respectively valid product or service description at the time the contract. Adjustments are possible. Please refer to § 4 of Part I of the Terms and Conditions.
(2) If Cash & Cow provides the client with applications for use, the client himself is responsible for installation and commissioning. All possible support services of the contractor are only provided for a separate fee.
§ 3 Rights of use, technical protective measures
(1) The contractor is entitled to take appropriate technical measures to protect against non-contractual use of applications or against breach of other essential obligations of the client.
(2) The client is aware that every installation of the application and each device of a terminal accessing or using the application requires registration, and the use of the application is limited to the respectively registered hardware. The client is further aware that without carrying out the registration process it is not possible to use the software in full functionality.
§ 4 Special provisions for data transmission services
(1) Insofar as the client wishes to use the data transmission services of the contractor by means of an application, separate user fees may be incurred for this purpose, unless otherwise agreed the current performance description of the application.
(2) The client does not acquire any rights to the applications. Both the names and trademarks used for the applications and the intellectual property rights in the applications and supporting materials, including all rights to forms, teaching materials, systems, program interfaces and other works and know-how, remain with the contractor and its licensors.
(3) The client makes the following obligations when using the data transmission services – without prejudice to other obligations and obligations, which also arise from the service description and Part I of these Terms and Conditions:
a) The client will immediately check the data made available to him locally by the contractor in the software as well as the notification service, in particular for accuracy and completeness. If the client determines errors or incompleteness in the data sent or information provided by the contractor, he must report this in a comprehensible and detailed form, stating all relevant information, to Cash & Cow and correct the data or resubmit it to perform the data.
b) The client is solely responsible for the storage and / or archiving of the data within the legal retention periods.
c) If an online application allows the client to store data in the data center, the data will be deleted in the event of termination 30 days after the end of the last billing month together with the access data.
In case of deviations between the german and english version of the terms and conditions the german version prevails.
As of: 24.06.2020